International Criminal Court (ICC) judges have reminded all participants in the trial of Deputy President William Samoei Ruto and former radio journalist Joshua arap Sang, as well as the wider public, that it is an offense to reveal the identity of a witness who is under the court’s protection, and anyone doing so may be prosecuted.
Trial Chamber V(a) judges made what they called a “special reminder” on Wednesday after it emerged that some websites made public the identity of prosecution Witness Number 536, who had begun her testimony Tuesday. The judges particularly mentioned the media, bloggers, and social media users in their reminder.
“The Chamber therefore reminds everyone inside the courtroom, in the public gallery, in Kenya, and anywhere in the world to do nothing that would reveal or attempt to reveal the identity of a protected witness. The reason for such conduct is immaterial. So too, the manner of gaining access to or arriving at or gleaning such information,” said Presiding Judge Chile Eboe-Osuji who read the special reminder on behalf of his fellow judges.
Witness 536 did not testify Wednesday as had been previously scheduled. Instead, Senior Trial Lawyer Anton Steynberg applied for a closed session at the start of the day’s proceedings to discuss matters that had arisen overnight, presumably the online revelation of the identity of the first prosecution witness to take the stand. Throughout Wednesday the court held either closed hearings with all parties attending or had ex-parte hearings, sessions where only either the prosecution or the defense were present.
The last session of the day was the only held in public, and it is after reading the special reminder that Eboe-Osuji invited submissions on the matter of the impact on the trial of the resolutions of the Kenyan National Assembly and Senate calling on the government to pull out of the ICC.
Steynberg argued that those resolutions had led witnesses to raise concerns about their safety if they testified in open court. Steynberg asked the judges to apply limited protective measures in court to all witnesses, instead of the existing policy where such measures are determined on a case-by-case basis. Protective measures in court include what had been given to Witness 536. The curtains of the public gallery were drawn, and the live streaming blocked whenever she walked in or out of the courtroom. She had a screen around her to block any public view of her, and she was only visible to those in the courtroom. On the live stream feed, the image of her face was pixelated and her voice distorted.
Ruto’s lead lawyer, Karim Khan strongly opposed the prosecution’s application, arguing the court should only apply such measures on a case-by-case basis. Khan said that the debate in the National Assembly and Senate and the resolutions they passed were part of the robust debate that takes place in a thriving democracy, and they had no impact on the trial. Khan pointed out that the National Assembly passed a similar resolution in December 2010 but that did not lead to Kenya pulling out of the Rome Statute nor did it have an impact on the pre-trial phase of the case.
“This is not a country that is in opposition to the ICC. This is not a country that is being dragged kicking and screaming like a naughty school boy to the ICC,” Khan said in reference to Kenya’s relationship with the court.
Sang’s lawyer, Joseph Kigen-Katwa supported the arguments that Khan made. “We pray that there should be no nexus between what the Kenyan parliament has done and what the court decides,” Kigen-Katwa said.
Ruto spoke to the court, saying that his presence at the trial “is a confirmation that Kenya believes in the rule of law.”
The lawyer for the victims, Wilfred Nderitu, said that the court should not treat the fears that the witnesses had expressed as simply subjective concerns as the defence had argued. He said the witnesses’ fears were real.
“The impact of this is that what the Senate and the National Assembly are, in so many words telling witnesses and victims, is that cooperation with the ICC or participating in the trial leaves you witnesses, leaves you victims, on your own,” Nderitu said.
In response to the defense submission, Steynberg said it was immaterial whether the resolutions of the two houses of Parliament were binding on the government.
“The legal effect of the resolution is irrelevant. It is the chilling effect that is the issue before us at the moment,” Steynberg said.